COURT FILE NO.: FS-12-380746
DATE: 20121204
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Patrice Cote, Applicant
AND:
Asha Cote, Respondent
BEFORE: Czutrin J.
COUNSEL:
Patrice Cote, Applicant – In Person
Malerie Rose, for the Respondent
HEARD: Written Submissions: November 7, 2012 and November 16, 2012
Corrected ENDORSEMENT
[ 1 ] On September 27, 2012, the parties appeared before me on a motion commenced by the Applicant (husband) originally returnable on September 11, 2012, seeking leave to bring the motion as urgent relief and relieving the requirement for a case conference prior to a motion.
[ 2 ] The Applicant is a family law lawyer who has chosen to act in person on this case.
[ 3 ] I presume that he is aware of the requirements of the Rules and, in particular, Rule 14:
WHEN TO MAKE MOTION
(1) A person who wants any of the following may make a motion:
A temporary order for a claim made in an application.
Directions on how to carry on the case.
A change in a temporary order. O. Reg. 114/99, r. 14 (1); O. Reg. 544/99, s. 6; O. Reg. 89/04, s. 6 (2).
WHO MAY MAKE MOTION
(2) A motion may be made by a party to the case or by a person with an interest in the case. O. Reg. 114/99, r. 14 (2).
PARTIES TO MOTION
(3) A person who is affected by a motion is also a party, for purposes of the motion only, but this does not apply to a child affected by a motion relating to custody, access, child protection, adoption or child support. O. Reg. 114/99, r. 14 (3).
NO MOTION BEFORE CASE CONFERENCE ON SUBSTANTIVE ISSUES COMPLETED
(4) No notice of motion or supporting evidence may be served and no motion may be heard before a conference dealing with the substantive issues in the case has been completed. O. Reg. 89/04, s. 6 (3); O. Reg. 383/11, s. 3 (1).
URGENCY, HARDSHIP ETC.
(4.2) Subrule (4) does not apply if the court is of the opinion that there is a situation of urgency or hardship or that a case conference is not required for some other reason in the interest of justice. O. Reg. 202/01, s. 4 (1); O. Reg. 89/04, s. 6 (4).
[ 4 ] On September 11, 2012, at the request of the Respondent (Wife) Herman J. endorsed that the Respondent sought an adjournment to retain a lawyer and to prepare responding materials.
[ 5 ] The Applicant opposed the request, but Herman J. adjourned the motion to September 27, 2012.
[ 6 ] On September 27, 2012, the Respondent once again asked for an adjournment. I made the following endorsement:
The Respondent seeks a further adjournment of this motion to list the home. The Respondent was served on August 31, 2012 and has until Monday October 1, 2012 2:00 PM to serve and file and Answer to this Application
If no Answer is filed as above, matter may proceed on uncontested basis
If no reply is filed on the motion by the same date, the motion will proceed on an uncontested basis at 10 A.M.
This does not preclude the parties attending free mediation. The motion is returnable before me (if I am available) on October 4, 2012 at 10 A.M. Costs reserved to me.
The Respondent retained counsel (Malerie Rose) and complied with my previous time lines.
[ 7 ] On October 4, 2012, Ms. Rose, on behalf of the Respondent, sought an order dismissing the Applicant’s motion and I endorsed:
The Respondent sought to have me dismiss the motion on three grounds:
- No corollary relief claimed by the Applicant in his Divorce Application.
- No urgency.
- No factum.
The Applicant sought to adjourn the motion. I advised that a case conference should be held as I saw no urgency in the motion.
The Applicant shall serve and file his Reply to Answer by October 11, 2012.
The case conference was set for October 26, 2012 at 3:30 P.M.
The Applicant shall serve and file 2009, 2010 income tax returns and Corporate Returns and best data and information concerning his income by October 22, 2012. Case Conference Brief to be served pursuant to the Rules.
The issue of costs of today and motion I previously adjourned (to be decided) on written submissions after October 26, 2012 and after the exchange of material.
If the issues are not resolved (temporary) at case conference and motions are brought I am prepared to assign a judge to hear motions. The Respondent filed a factum today and prepared a Bill of Costs. The Applicant to serve and file (to my attention costs submissions and Bill of Costs) by November 9, 2012 and Reply by November 16, 2012.
[ 8 ] I received the written submissions of the Respondent on November 7, 2012. The Applicant’s submissions are dated November 16, 2012.
[ 9 ] On November 21, 2012, the Applicant faxed what was purported to be supplementary costs submissions.
[ 10 ] The fax was a letter addressed to me dated November 21, 2012 (with copy to Respondent’s counsel) and commences by reviewing my previous endorsements and acknowledges that I had yet to decide the issue but suggests that on November 20, 2012, he received correspondence from the Respondent’s counsel that was withheld from me and therefore mislead me about the urgency.
[ 11 ] The Respondent’s counsel felt compelled to respond to the letter and suggested that it was inappropriate to deal with these allegations through correspondence. I agree.
[ 12 ] It is most inappropriate to write to a judge on a pending matter. I decided urgency and left costs to be decided on written submissions.
[ 13 ] The Applicant is a lawyer and should know what the proper remedy might be if there is any validity to the assertion that I was mislead. It certainly is not by a letter written to a judge while costs are pending.
[ 14 ] I will not entertain such letters. I will hold off deciding costs until December 10, 2012. If the Applicant wishes to pursue the issue (I repeat it is for him to decide how to do so) he shall commence any further process well before December 10, 2012. The Applicant and counsel to appear before me on a date that week to advise on the record with proper material if the issue of the sale of the property is being resurrected if it is not resurrected or the Applicant does not seek to deal in a proper manner the issues he has raised by December 10, 2012 I will decide the issue of costs.
[ 15 ] No more letters.
Czutrin J.
Released: December 4, 2012